Judge Wesley L. Hsu, Case 21PSCV00293 2023-03-15 Tentative Ruling

Defendant Audrey Marie Holmes’ Motion for Summary Adjudication is summarily DENIED as untimely.

Plaintiff Sikiru Hamzat (“Plaintiff”) alleges as follows: Plaintiff and Defendant Audrey Marie Holmes (“Defendant”) started dating in September 2020. The following month, Plaintiff and Defendant decided to buy a home together, as a couple and as business partners, to live in for a few years, fix up, and then sell and split any profits equally. Plaintiff and Defendant purchased the property located at 3414 Patritti Avenue, Baldwin Park, California 91706 (“subject property”) for approximately $525,000.00 on December 17, 2020. Plaintiff and Defendant agreed that Defendant would obtain the financing to purchase the subject property and that once escrow closed Plaintiff would be placed on title to same as a one-half joint owner. Plaintiff paid tens of thousands of dollars to Defendant to fund the escrow account used to purchase the subject property. Plaintiff thereafter spent a substantial amount of time improving and furnishing the subject property. Plaintiff also paid over 50% of the subject property’s loan and a majority of the utilities. Plaintiff was never put on title, as promised. On April 7, 2021, Defendant evicted Plaintiff from the subject property.

On July 12, 2021, Plaintiff filed a First Amended Complaint, asserting causes of action against Defendant and Does 1-5 for:

The Final Status Conference is set for April 10, 2023. Trial is set for April 18, 2023.

Defendant moves the court for summary adjudication of the first, third and sixth causes of action in Plaintiff’s FAC.

The motion was filed (mail served on December 29, 2022) on December 30, 2022 and originally set for hearing on March 21, 2023. On February 15, 2023, Defendant filed an “Ex Parte Application of Notice of Motion and Motion to Change Hearing Date for Defendant’s Motion for Summary [Judgment]” (“Ex Parte Application”); on February 17, 2023, the court granted the Ex Parte Application and rescheduled the hearing on the instant motion to March 15, 2023.[1]

Code of Civil Procedure § 437c, subdivision (a)(2) reads as follows: “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice if served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. . .”

In Robinson v. Woods (2008) 168 Cal.App.4^th 1258, defendants served plaintiffs with a motion for summary judgment on January 26, 2007 via mail, noticing same for hearing on April 12, 2007—76 days after the date of mailing and 18 days before trial. Plaintiffs subsequently filed opposition papers, arguing that the motion was untimely on two grounds: (1) the hearing had to be set at least 80 days after service by mail (i.e., 75 days plus 5 days) and (2) the motion had to be heard no later than 30 days before the trial date unless the trial court ruled otherwise for “good cause,” and defendants had not sought such a ruling, nor had the court made one. Plaintiffs did not file any opposition on the merits or file an opposing separate statement. At the April 12, 2007 hearing, the trial court, inter alia, continued the hearing for four days, to Monday, April 16, 2007—the 80^th day after the mailing of the motion—, advised defendants to file a declaration setting forth the reasons why the motion should be heard within 30 days of trial and invited plaintiffs to file a separate statement. Plaintiff’s counsel responded that the motion should be dismissed, not continued, and that plaintiffs were under no obligation to file a separate statement. On April 16, 2007, the court stated that it had received a declaration from defendants and that the court found “good cause” for the motion being brought within 30 days of trial. Plaintiff’s counsel again objected to the procedure adopted by the trial court, saying he should have had more than “just four days. . . to file my response.” The court thereafter analyzed the motion on the merits, noted that plaintiffs did not file a separate statement notwithstanding the court’s invitation to do so and entered judgment for defendants.

The Court of Appeal reversed, determining that “as McMahon [v. Superior Court (2003) 106 Cal.App.4^th 112] and Urshan [v. Musicians’ Credit Union (2004) 120 Cal.App.4^th 758] establish, the 76-day notice given by defendants on the mailed motion was invalid. Thus, at the noticed hearing on April 12, 2007, the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew, and 75 days notice is mandatory where notice is given personally. (See § 437c, subd. (a).). . . [t]he four-day continuance was a violation of due process and an abuse of discretion.” (Id. at 1267-1268). The Court of Appeal further determines that the April 12, 2007 hearing was improper because “[d]efendants noticed their motion for hearing within 30 days of the trial date without first obtaining a determination of good cause from the trial court. (See § 437c, subd. (a)). Unless and until the trial court found good cause, the notice of the hearing was invalid. . .” (Id. at 1268).

Here, defendant’s Ex Parte Application argued that the reserved March 21, 2023 hearing date on the motion for summary judgment fell within the 30 days before the trial date. Defendant did not, prior to filing its motion, first obtain a determination of good cause from the trial court. (See Code Civ. Proc., § 437c, subd. (a).) Again, “[u]nless and until the trial court found good cause, the notice of the hearing was invalid.” (Robinson, supra, 168 Cal.App.4^th 1258, 1268.) The court, in granting Defendant’s Ex Parte Application, instead elected to advance the March 21, 2023 hearing date to March 15, 2023. The applicable notice period is computed by counting backwards from the hearing date, excluding the day of the hearing. (Code Civ. Proc., § 12c). In this instant case, the motion was mail-served on December 29, 2022; 75 days after the date of mailing is March 15, 2023. However, the motion should have been mail-served no later than Sunday, December 25, 2023 in order to have provided 80 days’ notice (i.e., 75 days’ notice, plus 5 additional calendar days) for the March 15, 2023 hearing date. The February 17, 2023 minute order is silent as to whether the court sought, let alone obtained, Plaintiff’s counsel’s consent to shorten the mandatory minimum notice period.

On March 9, 2023 Plaintiff filed an untimely opposition on the merits, which the court has declined to consider. The fact that Plaintiff filed an opposition (timely or not) does not change the outcome here. The Urshan court addressed the issue of waiver, stating in relevant part that “[i]n any event, waiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence. Waiver of minimum notice in this context should only be based on the affirmative assent of the affected parties. As earlier noted, the court did not solicit, and did not secure, Urshan's consent to the shortened notice period. His silence and, in essence, forced participation in the proceedings given the factual circumstances of this case, is not a valid substitute for knowing consent to shortening the statutorily mandated notice period. . .” (Urshan, supra, 120 Cal.App.4^th at 768.) Robinson likewise concluded that “[w]here inadequate notice is approved by the trial court—through either a case-specific order (Urshan ) or a local court order (Boyle )—a full-blown opposition on the merits, in writing and at the hearing, does not appear to waive a timeliness objection.” (Robinson, supra, 168 Cal.App.4^th at 1267 (emphasis added).)

[1] As defendant conceded in her ex parte application to advance the hearing date, the March 21, 2023, hearing date was itself invalid because it was less than 30 days before trial.